The nomination of Judge Brett Kavanaugh to the Supreme Court makes clear that he is keeping this promise.
If confirmed to the Supreme Court, Kavanaugh would be a threat to reproductive rights and would make a great attempt to roll back the Affordable Care Act (ACA). In 2017, Kavanaugh wrote an opinion in Garza v. Hargan concerning whether a pregnant 17-year old being held by immigration authorities was allowed to leave their custody to obtain an abortion. Kavanaugh objected, saying that requiring the government to assist the young women in obtaining an abortion would ignore the governments “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” In this case, Kavanaugh violated this young women’s constitutional rights by placing an “undue burden” on her access to abortion.
Beyond rolling back access to reproductive health care, including abortion and contraception, within the next few years, the Supreme Court could also decide on major health care issues, including overturning the Affordable Care Act, cutting health coverage through Medicaid and marketplace waiver authority, and deciding whether Medicaid access standards are enforceable in court.
Kavanaugh’s past decisions indicate that he would likely repeal the ACA. In 2011, Seven-Sky v. Holder questioned whether the ACA’s individual mandate requiring every American to have health insurance was a legitimate exercise of Congress’ power to regulate interstate commerce. Kavanaugh argued that a president could decline to enforce a statute such as the ACA even if a court upholds its constitutionality. Kavanaugh’s view could essentially allow Trump to pick and choose which legislation he would like to enforce.
When such critical cases are coming into the courts that decide the matters of immigration, for example, such as Texas v. United States, Kavanaugh could directly impact innocent lives, such as DAPA and DACA initiatives. The problematic nature of Kavanaugh’s decisions extend beyond reproductive health and it is important to recognize that SCOTUS is a lifetime appointment, meaning Kavanaugh could serve for decades to come.
Kennedy played a pivotal role in Whole Woman's Health, a case reaffirming women’s constitutional right to abortion, which, with Kavanaugh, would be threatened. If Roe were overturned, abortion would dominate state politics— and state elections —across the country for the next several years. Women’s health is all-encompassing. It is not just a women’s issue, it is a LGBTQ+ rights, immigrant rights, climate justice, and anti-gun violence issue. Based on previous court rulings, he carries with him this strong potential to undermine women’s reproductive rights and affordable health care along with immigrants’ rights, LGBTQ+ equality, and gun control for generations to come.
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